Thomas S/o Devassia v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943** **CRL.A NO. 971 OF 2007** **AGAINST THE JUDGMENT IN SC NO.395/2005 DATED 24.5.2007 OF ADDITIONAL SESSIONS COURT (ADHOC-1), THODUPUZHA, IDUKKI** ## **APPELLANT/ACCUSED:** THOMAS S/O.DEVASSIA, MATTATHIL VEEDU, KALLIMALI KARA, RAJAKKADU VILLAGE, IDUKKI DISTRICT. BY ADVS. THOMAS ANTONY S.SURAJ (PALATHANATHU) TITUS MANI ## **RESPONDENT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI. M.C.ASHI (PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Crl.A.No.971/2007 ## _**JUDGMENT**_ _Dated this the 6[th] day of August, 2021_ The challenge in this appeal is to the judgment dated 24.5.2007 passed by the learned Additional Sessions Judge (Adhoc-I), Thodupuzha in Sessions Case No.395 of 2005. By the impugned judgment, the appellant/accused was convicted of the offence punishable under Section 8(2) of the Abkari Act and was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-. 2. The prosecution case is that on 12.8.2002, at 4.45 P.M., the S.I. of Police, Rajakkad (PW4), searched the residence of the accused and found the accused engaged in distillation of illicit arrack. 3. After completion of investigation, final report was submitted against the accused before the Judicial First Class Magistrate Court, Adimaly. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the trial court. On appearance of the accused, charge was framed against him for the offence under Section 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 3 Crl.A.No.971/2007 4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5, Exhibits P1 to P10 and MOs 1 to 3 series. 5. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C was recorded. He pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. DW1 was examined from the side of the accused. The trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offence punishable under Section 8(2) of the Abkari Act and he was convicted thereunder. 6. Heard Sri.Thomas Antony, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent/State. 7. The learned counsel for the appellant/accused contended that the prosecution has not satisfactorily explained the delay in the production of the properties before the court. It is further contended that the prosecution has not succeeded in establishing that the articles said to have been seized from the place of occurrence eventually reached the hands of the Analyst at the Chemical 4 Crl.A.No.971/2007 Examiner's laboratory. The learned counsel for the appellant further submitted that there is no satisfactory explanation for the delay in the analysis of the sample at the Chemical Examiner's laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 9. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## The Point 10. PW4 has given evidence that on 12.8.2002, while he was on patrol duty at Amabalakavala Bhagam, he got reliable information that the accused was engaged in distilling of arrack at his residence. The police team led by him proceeded to the residence of the accused and searched the premises. The accused was found distilling arrack at his residence. PW4 seized 10 litres of wash stored in a 20 litres can, 500 ml. of arrack in a 750 ml. bottle and other utensils used for distilling illicit arrack. He prepared Exhibit P5 search list. He collected 180 ml. of arrack and 375 ml. of wash in two bottles as sample and sealed the same. PWs 1 and 2, the independent witnesses, did not support the prosecution case. 11. PW3, the then Secretary of Rajakkadu Grama Panchayat, 5 Crl.A.No.971/2007 gave evidence regarding ownership of the building from where the contraband articles were seized. PW5, the S.I. of Police, Rajakkad, completed investigation and submitted final report before the court against the accused. 12. The learned counsel for the appellant/accused contended that the delay in the production of the articles including the bottles containing the sample before the court has not been satisfactorily explained by the prosecution. PW4 has given evidence that the articles including the bottles containing the sample were produced before the court on 16.8.2002. Exhibit P7 list of properties sent to the Magistrate would also show that the articles reached the court only on 16.8.2002. It is pertinent to note that the accused and all other contemporaneous documents were produced before the court on 13.8.2002 itself. The explanation given by PW4 for the delay in the production of the properties including the bottles containing the sample is that the properties were in his safe custody. The explanation of PW4 is no way satisfactory. 13. On the question of delay in the production of the properties, a Division Bench of this Court in _**Ravi v. State of Kerala & another** [2011(3) KHC 121]_ held thus: _“8(1) It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C or by_ 6 Crl.A.No.971/2007 _virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied)_ 14. The Division Bench held that production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case, there is no satisfactory explanation for the delay in the production of the property. The unexplained delay in the production of the property would lead to the conclusion that tampering with the samples could not be ruled out. 15. The learned counsel for the appellant further submitted that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the place of occurrence eventually reached the hands of the Analyst at the Chemical Examiner's laboratory. He relied on the following circumstances to substantiate his contentions. - (a) The detecting officer has not narrated the nature and description of the seal stated to have been affixed on the bottles containing the sample in Exhibit P5 search list, the contemporaneous document evidencing seizure and 7 Crl.A.No.971/2007 drawing of the samples. - (b) The delay in the production of the bottles containing the sample before the court has not been satisfactorily explained. - (c) The officials, who were in the custody of the samples during different stages, have not been examined as witnesses. - (d) The delay in the analysis of the samples in the laboratory has not been satisfactorily explained. 16. Exhibit P5 search list, prepared by PW4 at the time of seizure and drawing of the sample, is silent regarding the nature and description of the seal affixed on the bottles containing the sample. 17. In _**Bhaskaran v. State of Kerala and another** (2020 KHC 5296)_ , this Court held that the nature of the seal used shall be mentioned in the seizure mahazar. The requirement of the narration of the nature of the seal in the search list/seizure mahazar is to enable the court to satisfy the genuineness of the sample produced in the court. 18. Exhibit P8 is the copy of the forwarding note prepared by the detecting officer. The name of the officer with whom the samples were forwarded to the Chemical Examiner's laboratory has not been 8 Crl.A.No.971/2007 mentioned in Exhibit P8. The copy of the forwarding note has been countersigned by the learned Magistrate. But, he omitted to mention the date on which he affixed his signature. There is absolutely no evidence as to the date on which the samples were received from the court by the Police Official concerned. In order to establish the tamper proof despatch of the samples evidence on these facts is highly required. It was imperative for the prosecution to examine the property clerk of the court or the Police Official concerned to establish tamper proof despatch of the sample to the laboratory. 19. While dealing with a similar fact situation, this Court in _**Kumaran v. State of Kerala** [2016 (4) KLT 718]_ held that non examination of the property clerk of the court or the Police Official who received the samples from the court is fatal to the prosecution and in such cases, the accused is entitled to benefit of doubt. 20. Admittedly the samples changed several hands. In _**State of Rajasthan v. Daulat Ram** [(1980) 3 SCC 303])_ , the Apex Court held that where the samples changed several hands, the prosecution has to establish that the seals on the samples were not tampered with while in their custody by examining the officials concerned. The Apex Court further held that the inevitable effect of this omission is that the prosecution failed to rule out the possibility 9 Crl.A.No.971/2007 of the samples being changed or tampered with during the relevant period. Exhibit P10 certificate of Chemical Analysis would show that the samples reached the Chemical Examiner's laboratory on 17.9.2002. The Chemical Examiner analysed the samples only on 12.9.2003. This Court in _**Krishnadas v. State of Kerala** (2019_ ## _KHC 191)_ , in paragraph 6 held thus : _“6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.”_ 21. In the instant case, the delay of almost a year in the analysis of the sample remains unexplained. 22. In _**Vijay Pandey v. State of U.P** (AIR 2019 SC 3569)_ , the Apex Court held that mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be corelated. 23. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which 10 Crl.A.No.971/2007 was drawn from the bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. 24. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Hence, no evidentiary value can be given to Exhibit P10 chemical analysis report. The accused is entitled to benefit of doubt arising from the absence of link evidence and other circumstances discussed above. 25. The upshot of the above discussion is that the conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. The Criminal Appeal is allowed as above. Sd/- **K.BABU, JUDGE** csl